Park Inn Hotel, Inc.

PARK INN HOTEL, INC., ETC. 669 Park Inn Hotel, Inc., and 115-02 Ocean Promenade, Inc. and Waiters and Waitresses Union, Local No. 2, of Brooklyn and Queens, AFL-CIO, affiliated with the Hotel & Restaurant Em- ployees and Bartenders International Union, AFL-CIO and Local 819, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party in Interest Abraham Candib and Waiters and Waitresses Union, Local No. 2, of Brooklyn and Queens, AFL-CIO, affiliated with the Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO and Local 819, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Party in Interest 115-02 Ocean Promenade, Inc., Debtor in Possession and Waiters and Waitresses Union, Local No. 2, of Brooklyn and Queens, AFL-CIO, affiliated with the Hotel & Restaurant Employees and Bartenders International Union AFL-CIO and Local 819, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Party in Interest. Cases Nos. 2-CA--8'51, 2-CA-8397-1, and f-CA.-8397-2. October 31, 1962 DECISION AND ORDER On July 10, 1962, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter the Respondents and the General Counsel filed exceptions to the Intermediate Report and the General Counsel filed a supporting brief. Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner except as modified herein.' 1 The Respondents' request for oral argument is denied as, in our opinion , the record, exceptions, and brief adequately presents the issues and the positions of the parties. 139 NLRB No. 49. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find merit in the General Counsel's exceptions that employees Rada, Dubyk, Barto, Stetzner, and Antonello were unlawfully denied work by the Respondents after they refused to sign a statement at the Respondent's request disclaiming interest in the Union. Although the request to sign the statement was made before May 3, 1961, the applicable Section 10(b) period, the Respondents' refusals to assign work to Rada, Antonello, Barto, Dubyk, and Stetzner because of their refusal to sign the statement took place after May 3, up to the commencement of the strike on May 27, 1961. These refusals to assign work, insofar as they occurred on or after May 3, 1961, were within the 10(b) period and are found to have violated Section 8(a) (1) and (3) of the Act. Further, for purposes of determining the amount of backpay these discriminatees may be entitled to, the period of discrimination shall date from May 3, 1961. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Park Inn Hotel, Inc., 115-02 Ocean Promenade, Inc., Abraham Candib, and 115-02 Ocean Promenade, Inc., as Debtor in Possession, Rockaway Park, county of Queens, city and State of New York, their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership or activities in Waiters and Wait- resses Union, Local No. 2, of Brooklyn and Queens, AFL-CIO, affil- iated with the Hotel & Restaurant Employees and Bartenders Inter- national Union, AFL-CIO, by discharging any of its employees or by discriminating against any employee in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (b) Giving any support or assistance to Local 819, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. (c) Threatening employees with reprisals because of their adherence to Waiters and Waitresses Union, Local No. 2, of Brooklyn and Queens, AFL-CIO, affiliated with the Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO. (d) In any manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to join or assist Waiters and Waitresses Union, Local No. 2 of Brooklyn and Queens, AFL-CIO, affiliated with the Hotel & Restaurant Em- PARS INN HOTEL, INC., ETC. 671 ployees and Bartenders International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the ex- tent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act, as amended. 2. Take the following affirmative action necessary to effectuate the policies of the Act : (a) Offer to Veronica Antonello, Gertrude Barto, Jean Briskman, Stella Dubyk, Mildred Kohut, Rita Lehman, Margaret Murphy, Beatrice Rada, Miriam Ring, Rita Stetzner, Rose Sussman, and Mary Romas reinstatement to her previous or substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges, and make each of them whole for any loss of earnings each may have suffered by reason of the discrimination against her in the manner set forth in the Intermediate Report in the section entitled "The Remedy,"' as modified by this Decision and Order. (b) Preserve and, upon request, make available to the Borard or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its hotel in Rockaway Park, county of Queens, city and State of New York, copies of the attached notice marked "Ap- pendix." I Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondents' representatives, be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 9 The amount of backpay due shall include an allowance for interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716 member Rodgers, for the reasons set forth in his dissenting opinion in Isis, would not award interest. In the event that this Oider is enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforc- Ing an Order" shall be substituted for the words "Pursuant to a Decision and Order " 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT discourage membership or activities in Waiters and Waitresses Union, Local No. 2, of Brooklyn and Queens, AFL-CIO, affiliated with the Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, or in any other labor organization, by discriminating in any manner in regard to the hire and tenure of employment or any term or condition of employment of our employees. WE WILL cease and desist from giving any assistance or support to Local 819, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. WE WILL NOT threaten our employees with reprisals because of their adherence to Waiters and Waitresses Union, Local No. 2, of Brooklyn and Queens, AFL-CIO, affiliated with the Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in any other con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activi- ties, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a) (3) of the Act, as amended. WE WILL offer immediate and full reinstatement to her former or substantially equivalent position to each of the employees named below, without prejudice to her seniority or other rights and priv- ileges, and we will make each of said employees whole for any loss of pay she may have suffered by reason of the discrimination prac- ticed against her : Veronica Antonello Gertrude Barto Jean Briskman Stella Dubyk Mildred Kohut Rita Lehman Margaret Murphy Beatrice Rada Miriam Ring Rita Stetzner Rose Sussman Mary Romas PARK INN HOTEL, INC., ETC. 673 All our employees are free to become, remain, or to refrain from be- coming or remaining members of the above-named or in any other labor organization. PARK INN HOTEL, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) 115-02 OCEAN PROMENADE, INC., Employer. Dated------------ ---- By------------------------------------- (Representative ) ( Title) ABRAHAM CANDIB, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) 115-02 OCEAN PROMENADE, INC., DEBTOR IN POSSESSION, Employer. Dated---------------- By------------------------------------- (Representative) (Title) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Serv- ice Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York 22, New York, Telephone Num- ber, Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge in Case No. 2-CA-8251 duly filed November 3, 1961, and upon a charge in Cases Nos. 2-CA-8397-1 and 2-CA-8397-2 duly filed January 16, 1962, by Waiters and Waitresses Union, Local No. 2, of Brooklyn and Queens, AFL-CIO, affiliated with the Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, hereinafter referred to as Local 2 or the Charging Party, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel i and the Board, respectively, by the Regional Director for the Second Region (New York, New York), issued its consolidated amended complaint dated February 20, 1962, against Park Inn Hotel, Inc., and 115-02 Ocean Promenade, Inc., Abraham Candib, and against 115-02 Ocean Promenade, Inc., as Debtor in Possession, hereinafter referred to as the Respondents. The consolidated amended 1 This term specifically includes the attorneys appearing for the General Counsel at the hearing. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint alleged that Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (2), and (3) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act, by interfering with, restraining, and coercing its employee waitresses in violation of Section 8(a)(1) of the Act; by rendering assistance and support to Local 819, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, hereinafter referred to as Local 819 or the Party in Interest,2 in violation of Section 8(a)(2) of the Act; and by dis- criminating in regard to the hire and tenure of employment and terms and conditions of employment of certain named employee waitresses in violation of Section 8(a) (3) of the Act. Respondents duly filed an answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held thereon at New York, New York, on various dates between March 12 and April 13, 1962, before Trial Examiner Thomas S. Wilson. All parties except Local 819 appeared at the hearing, were represented by counsel, and afforded full opportunity to be heard, to produce, examine, and cross-examine witnesses, to introduce evidence material to the issues, and were advised of their right to argue orally upon the record and to file briefs, propose findings, and conclusions or both. At the conclusion of the hearing the parties waived oral argument. A brief was received from General Counsel on May 16, 1962. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENTS 115-02 Ocean Promenade, Inc, is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of New York. Park Inn Hotel, Inc., is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of New York. Respondent Park Inn is a wholly owned subsidiary of Respondent Ocean Promenade. Abraham Candib is, and has been at all times material herein, the president of Respondents Park Inn, Ocean Promenade, and Debtor in Possession, acting on their behalf, their general manager, and their agent. Morris Scherl is, and has been at all times material herein, the vice president of Respondents Park Inn, Ocean Promenade, and Debtor in Possession, acting on their behalf and their agent. Norma Candib is, and has been at all times material herein, the secretary-treasurer of Respondents Park Inn, Ocean Promenade, and Debtor in Possession, acting on their behalf and their agent. Respondent Candib is, and has been at all times material herein, the principal stockholder of Respondents Park Inn, Ocean Promenade, and Debtor in Possession. The sole stockholders of said Respondents are and have been at all times material herein the said Morris Scherl, Norma Candib, and Abraham Candib. Respondents Park Inn and Ocean Promenade are, and at all times material herein have been, affiliated businesses with common officers, ownership, directors, and operators, and constitute a single integrated business enterprise and a single em- ployer. The said directors and operators formulate and administer a common labor policy for the aforenamed companies, affecting the employees of said companies. On or about November 20, 1961, Respondent Ocean Promenade filed a petition for an arrangement under chapter XI of the Bankruptcy Act with Docket No. 61-B-938 in the United States District Court for the Eastern District of New York. Said petition is still pending in said court. On or about November 21, 1961, in the proceeding for an arrangement referred to above, the Honorable Joseph C. Zavatt, United States district judge, issued an order authorizing Respondent Ocean Promenade to continue in possession of and to operate its properties and business as Debtor in Possession subject to further order of the referee in bankruptcy. Since on or about November 28, 1961, Sherman D. Warner, referee in bank- ruptcy in charge of the petition described above, issued successive orders authorizing Respondent Ocean Promenade to continue in possession of, and to operate, its properties and business as Debtor in Possession pursuant to said order of Judge 2 Although duly served, Local 819 made no appearance at the hearing. PARK INN HOTEL , INC., ETC. 675 Zavatt referred to above. At all times since on or about November 21, 1961, Re- spondent Debtor in Possession has continued in possession of, and has operated, the properties and business of Respondent Ocean Promenade, and has been engaged in substantially the same business operations as were formerly engaged in by Respond- ents Ocean Promenade and Park Inn, and has employed substantially the same em- ployees and supervisors. At all times herein material Respondents Park 'nn, Ccean Promenade, Debtor in Possession, and Candib, their agent, have maintained their principal office and place of business at 115-02 Ocean Promenade, Rockaway Park, in the county of Queens, city and State of New York, where they have been continuously engaged in furnish- ing hotel, catering, and related services and in operating and maintaining a hotel, known as the Park Inn Hotel. Respondents Park inn and Ocean Promenade having been so engaged up to and including on or about November 20, 1961, and Respondent Debtor in Possession having been so engaged from on or about November 21, 1961, to the present. During the past year, which period is representative of their annual operations generally, Respondents Park Inn, Ocean Promenade, and Debtor in Possession de- rived an income from the operation of the hotel and catering services in an amount in excess of $500,000. During the same period said Respondents, in the course and conduct of their business, purchased and caused to be transported and delivered to their place of business, meats, poultry, and other goods and materials valued in ex- cess of $50,000 of which goods and material valued in excess of $50,000 were trans- ported and delivered to their place of business in interstate commerce directly from States of the United States other than the State of New York, and in foreign com- merce directly from foreign countries. During the same period less than 75 percent of the rental units in the Park Inn Hotel were rented to guests who remained for a period of 1 month or more. The complaint alleges, Respondents admit, and the Trial Examiner finds that Re- spondents are individually and collectively engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Waiters and Waitresses Union , Local No. 2, of Brooklyn and Queens, AFL-CIO, affil,ated with the Hotel & Restaurant Employees and Bartenders International Union, AFL-CFO, and Local 819, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations admitting to mem- bership employees of Respondents. III. THE UNFAIR LABOR PRACTICES A. The background Park Inn Hotel is located on the boardwalk by a public beach in Rockaway Park, New York Daring the vacation season, which runs approximately from the end of June to the end of September, the hotel caters to vacationers who are housed in the hotel and fed there on what is referred to as the "American Plan," i.e., each guest is assigned to a certain table in the dining room where he is served whatever food he desires at three meals per day by a waitress assigned to that table. During the re- mainder of the year when there are few, if any, such house guests in the hotel, the six or more dining rooms in the hotel are engaged for various dinners, weddings, parties, and other functions of a religious, civic, or fraternal nature. While Abraham Candib, the present owner since October 1960, testified that the hotel will never turn down business, most of its affairs and parties are for such religious affairs as Jewish holidays, weddings, bar mitzvahs, etc., where catered food is served the guests. At such functions Respondents hire what are known as "catering waitresses" who can and do serve from 20 to 25 guests each depending in part upon the type of service selected for the individual party. Some of the waitresses involved herein have been working as catering and/cr American plan waitresses at the Park Inn Hotel for as many as 13 years, long before the present owners had anything to do with the man- agement of the hotel. Sometime early in April 1961, after the present owners acquired their interest in the hotel, Local 2 through Organizer Sidney Feinberg began efforts to organize the waitresses employed by Respondents This attempt soon came to the attention of Respondents. As Abraham Candib testified, . there is the funniest thing. There are no such things as secrets. Things get out, you get to know what's going on, regardless." Thus on either Saturday or Sunday night in the latter part of April 1961, probably April 22 or 23, after the parties were over that night, Respondents through Candib and 672010-63-vol 139-44 -676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his hotel manager, Martin Rothenberg, assembled all the waitresses who had been working those parties for a meeting in one of the many rooms of the hotel. After the waitresses had gathered, Candib and Rothenberg inquired of the group of 10 or 12 waitresses whether they had been approached by Local 2 either by post card or telephone call to join Local 2. When none of the girls volunteered any information in that regard, Candib asked each girl individually if she had received either a card or a telephone call from Local 2. Some of the girls denied having had any contacts with Local 2 but waitresses Veronica Antonello, Rose Sussman, Mildred Kohut, and Miriam Ring each admitted to being members of a union, albeit a union other than Local 2, or had received cards or telephone calls from Local 2. Following this in- dividual interrogation, Candib told the assembled waitresses that if they did not like their jobs at the hotel they did not have to work there, but "we are not going to have any union" at the hotel and "anybody who joins a union will be fired." Candib also told the girls that if they joined a union, they could not work for him. When waitress Sussman spoke up and asked how Respondents were going to run the affairs if all the waitresses were fired, Candib answered, "Don't you worry about that. We'll manage it." Mrs. Candib, who was also present, told the girls that Local 2 "is a man's union, this is not for waitresses, you will all be out of a job." By the following weekend, April 29 and 30, Respondents had prepared a state- ment on plain paper for signature which was described by Respondents' witness Doris Huerta as follows: ". . . but I do know that there was something brought up about Local 2 and they [Respondents] wanted some kind of a paper that the girls didn't want the Local, and that was to prove ,that we didn't want Local 2 in." This paper which Respondents destroyed when informed by their newly hired attorney that the document "and 30 cents would get them on the subway," i.e., that the document was worthless, was more accurately described by General Counsel's witness Beatrice Rada as: "I, the undersigned, hereby declare without stress or duress that I am satisfied on my job and that I do not plan to join any waiters, waitresses, bartenders and so on, unions." 3 Throughout this weekend, Respondents called the waitresses individually into Candib's office and asked them to sign this petition or statement. On Saturday, April 29, Beatrice Rada was sent to Candib's office where Rothen- berg in the presence of Candib and Mrs. Candib asked Rada to read and to sign the paper "if she wanted to" assuring her that no harm would come to her if she did not sign. After reading the document, Rada refused to sign. Actually Rada had signed a Local 2 union authorization card the day before, April 28. The following regular waitresses refused to sign Respondents' document: Rada, Antonello, Jean Briskman, Stella Dubyk, Gertrude Barto, and Rita Stetzner. Two ,of the alleged discriminatees here, Miriam Ring and Rita Lehman, signed the state- ment at Respondents' request. Two of the regular waitresses, Kohut and Sussman, were never asked by Respond- ents to execute this document for the reason that Respondents had refused to assign them work on that weekend after their admission that they belonged to unions as developed during the interrogation on the evening of April 22 or 23. On the weekend of April 29 and 30, Rothenberg and Headwaiter Morganstein informed waitress Jean Briskman that Kohut and Sussman had been "fired." As found above, Rada was requested to sign this document on the evening of April 29. She refused to sign because the contents "did not appeal to my dignity." On April 30, the next day, when Rada reported at the hotel for her assigned work that day, she was told by Headwaiter Morganstein, "You don't have to put your uniform on because you are not working ... well, there was a mistake. You are not working." However, it was undenied that Rada's name did appear on the assignment schedule for work on April 30 but that on April 30 Rada's assignment had been scratched off the sheet. Rada did not work that evening and was paid off in full. She requested work for the following 3 weeks in succession as was cus- tomary among the regular waitresses such as Rada. Each time she was informed there was "no work" for her. By the time that Rada was asked to sign Respondents' "yellow dog" statement, it is undenied that the following regular waitresses had signed the same: Margie Brady, Rose Mandelberg, Doris Huerta, Bridget Fahey, Sheila Fahey, Ronnie (Veronica) Andrews, Ann Kohler, and Joyce MacDonald. On Sunday, April 30, Briskman was sent to Candib's office where Candib in the presence of Rothenberg asked her to sign Respondents' document. Briskman told him that she "couldn't very well sign because he fired some of my friends, girls that I worked with for the last 10 years." Candib told Briskman "not to worry about 3 This is the document which Local 2 referred to throughout the hearing as the '"yellow dog contract." PARK INN HOTEL, INC., ETC. 677 them and [she] should just sign for him and [she] would have a good job with him." Briskman refused? Respondents attempted to excuse the interrogations of April 22 or 23 and the statement of April 29 and 30 on the ground that Local 2 had already by telephone claimed to represent a majority of Respondents' waitresses and that Respondents were merely attempting to determine the accuracy of this alleged claim of Local 2. This explanation does not account for the "yellow dog" phraseology of Respond- ents' prepared statement nor for coercive statements made by Candib, Mrs. Candib,5 and Rothenberg. During his testimony Candib appeared to be almost intentionally vague as to dates and chronology of events. In one instance Candib acknowledged that some events seemed to be "pushed up" in time. One such event which seems to have been so "pushed up" appears to have been the time when Local 2 first claimed majority representation. Sometime early in May, Candib telephoned Rose Sussman and Mildred Kohut and inquired as to whether they had joined or intended to join Local 2 or not. Candib promised Sussman that if she did not join Local 2 he would promise that all the girls would get an "even break" in work assignments., Under the 6 months' limitation rule of Section 10(b) the above findings cannot be considered or found to be unfair labor practices but it is now well established that these events occurring prior to the 6-month period are competent evidence on the questions of motivation, animus, and explanation of subsequent events. 1. Events within the 6-month period On or about May 9, Feinberg and his fellow organizer, Hoffner, made their orig- inal approach to Candib in the lobby of the Park Inn Hotel, introduced themselves, informed Candib that Local 2 represented a majority of the dining room employees, and requested Respondents to bargain with them. Candib referred to Local 2 as a "delicatessen local" and said that what he wanted was a "hotel local." When Feinberg answered that the employees, not the Respondents, would determine which union they wanted to represent them, Candib turned on his heel saying "You do what you have to do. I know what I have to do." 6 About 10 days or 2 weeks thereafter, about May 19, a meeting between the repre- sentatives of Local 2 and Respondents with their newly hired attorney, Harry Rosen- berg, was held at Respondents' hotel. This meeting was both short and abortive. On or before May 17, 1961, Local 2 filed a charge with the New York State Labor Relations Board charging Respondents with refusing to bargain with it and with interference. On Thursday, May 25, the parties had another fruitless informal meeting at the State Labor Relations Board. On Saturday, May 27,7 Local 2 went out on strike and established a picket line around Respondents' hotel. About 15 of Respondents' waitresses, of whom 11 are alleged discriminatees here, engaged in picketing until the end of the strike on the early morning of June 9. Respondents admit that they observed the waitresses who engaged in the picketing. The picket signs carried contained the words "on strike" and several of them referred to the fact that the waitresses were on strike against the "yellow dog contract," an obvious reference to the statement or declara- tion which Respondents presented to its waitresses for signatures on the weekend of April 29 and 30. Although a number of waitresses crossed the picket line throughout the strike so that the Respondents' catering business continued unabated, the pressure of the picket line apparently hurt Respondents' business. Candib testified, without any further corroboration, that Respondents did $50,000 less business in the period of March through September 1961 than it had done for the like period of 1960, a loss he appeared to blame onto the existence of the picket line. 4It is undenied that Kohut had worked as a waitress at the Park Inn Hotel for 13 years, Rada for 10 years, and Sussman for 91/2 years. 5Although an active participant in these and other events, Mrs. Candib was not called as a witness. 9 Although Candib and Rothenberg testified at the hearing that they had interrogated the waitresses on April 22 or 23 and 29 and 30 because of previous telephone calls from Feinberg claiming that Local 2 represented a majority of the waitresses, Candib's affidavit makes no mention of these alleged telephone calls from Feinberg and states affirmatively that lie learned of the organizational effort "from some of the girls." It thus becomes apparent that Respondents "pushed up" in time, as Candib himself suggested In his testi- mony, these two alleged telephone calls 7 All dates herein are in the year 1961 except as otherwise specified. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD So on the evening of June 8, with the knowledge of, but in the absence of, Attorney Rosenberg, Candib and Mrs. Candib met with officials of Local 2 at the Hamilton House Restaurant in Rockaway where they executed the following memo- randum of agreement about 4 a.m. on June 9: June 8, 1961 Memorandum of Agreement It is hereby agreed between the undersigned parties as follows: 1 Local #2 Waiters & Waitresses Union Bklyn & Queens N.Y. shall be recognized as the Bargaining Agent in Collective Bargaining for the Waitresses & Waiters in the Park Inn 116th St. & Boardwalk in the Borrough of Queens. 2 The following scales shall apply upon the signing of this agreement. This agreement shall be for a period of 2 years. $26-Ist six months, $28-2nd six months, $32-second year. 3 Dinners 4 hrs or less weekdays $17 1st six months, $20 Balance of Contract. 3-Luncheons 4 hrs 1st year $14 2nd year $16. 4 American Plan Waitresses 1st year $5.50 day, 2nd year $6 day. 5 Headwaiter $165 per week. Annual base. 6 Basic crew shall be mutually agreed upon between both parties. 7-No fringe benefits for 1st six-Retroactive in the event of illness. 8-All laws suits against either party shall be withdrawn. 9-Waitress $8 for Sunday night. 9-Arbitration clause usual in labor management agreements 10-This is merely a memorandum agreement. A regular formal agreement will be consummated. 11-Pickets will be withdrawn on Friday June 9th 1961.8 This memorandum of agreement was subscribed by A. Candib, Ed Hoffman, and Nat Messing, the latter two being officers of Local 2. As a result of this agreement, no pickets appeared on June 9 or thereafter. With one exception all waitresses on the picket line were given work assignments begin- ning June 9 and thereafter through the month of June. All such assignments were paid for at the increased rates. The record shows and Respondents admit that the following waitresses picketed the Park Inn Hotel during the strike: Veronica Antonello, Rose Sussman, Beatrice Rada, Jean Briskman, Mildred Kohut, Stella Dubyk, Rita Lehman, Rita Stetzner, Miriam Ring, Margaret Murphy, and Gertrude Bar-to. The record also shows that the following waitresses crossed the picket line and did not engage in the strike: Ronnie Andrews, Joyce MacDonald, Ann Kohler, Sheila Fahey, Bridget Fahey, Rose Mandelberg, Doris Huerta, Barbara Foley, Margie Brady, Irene Duda, Olga Genzone, Betty McAllister, Peggy Barry, and Frances Milsap. The General Counsel produced a considerable amount of evidence to the effect that, although the strikers were put back to work by Respondent as required by the memorandum of agreement at the higher wages called for therein, the returning strikers were given less work than previously and, in addition, were assigned the more onerous and less desirable jobs. Respondents' own payroll records substantiate the claim that the returning strikers were given fewer work assignments by Respondents than they had previously enjoyed and considerably less than those waitresses who did not participate in the strike.9 The Local 2 waitresses claimed, and Respondents actually did not deny, that after the strike Rothenberg and the headwaiters customarily assigned the returning strikers to the stations fartherest from the kitchen, to the heaviest carrying jobs, and to the least desirable side jobs instead of rotating such jobs evenly among all the waitresses as had been customary previously. It was undenied that waitresses Rada and Brisk- man who had been rotating as bartenders prior to the strike were no longer assigned to the bartending job after the strike. The bartending assignment is one of the choice assignments at a catered party. When waitress Dubyk complained to Rothen- berg that the harder jobs were no longer being rotated, she was told by Rothenberg that she "had asked for a job and she got it." When Dubyk then complained to Candib about the same matter, Candib told her to "go cry to your union mother" and that the nonstrikers had given him "no troubles and did not run around the streets with a sign." This document is in handwriting, parts illegible ind parts unmtell.,gible However it is the document which ended the strike. The exact terms are unimportant here 0 See Appendixes B and C PARK INN HOTEL, INC., ETC. 679 On one occasion Respondents catered a "lawn party," i.e., a catered affair given on the lawn of the hostess' residence. All the waitresses assigned to this party with one exception, a new waitress, were former strikers Respondents sent no porters to the affairs so that the waitresses were required to carry and set up the heavy tables on the lawn and to stick the umbrellas into the ground as well as to do their regular waitress work. After seeing the work required of these waitresses assigned to the lawn party, the new waitress picked up her belongings and departed. Candib himself admitted that, when the waitresses finally got back to the hotel after this lawn party, the repercussions from the waitresses were terrible. The fact that the Local 2 girls were not getting their equal share of the work was also confirmed by Candib and Rothenberg on several occasions during the period following the strike. Waitress Rose Sussman wore her union button to work which caused Rothenberg to remark, "You are wearing a button but you are getting less work." Also in June, Sussman remarked on a union election "victory" among the employees at the Park Hotel to waitress Briskman and Rothenberg which caused Rothenberg to say, "Sure, you have a victory but you are not going to get any work." The sole striker who was not assigned work following the strike was waitress Veronica Antonello who had been employed by Park Inn for about 18 months, who had been a member of Local 5 of the Waiters and Waitresses Union for some 6 years, and who signed a card designating Local 2 to represent her on May 3. At the conclusion of the strike Antonello called the hotel as usual for assignment on about 3 successive weeks. She talked with Martin Rothenberg, the hotel manager, who told her, "When the strike was on, when I called you and when I needed you, you didn't come. And now I don't need you anymore." Antonello has been assigned no work by Respondent since the end of the strike. At the conclusion of the meeting on the morning of June 9, then business agent and now president of Local 2, Edward Hoffman, was requested by Candib to come to the hotel and talk to the employees so that the strikers and nonstrikers would work in harmony. Hoffman appeared at the hotel the following afternoon and spoke to the assembled waitresses on the theme of "letting bygones be bygones." Waitress Ronnie Andrews, who had crossed the picket line throughout the strike, announced to the group in Hoffman's presence that she was speaking for the nonstrikers and that they would never join Local 2. After telling the girls that, if Local 2 got a union-security clause when it negotiated its contract with Respondents, then all the girls would have to join Local 2, 30 days after the execution of that contract, Hoffman beat a hasty retreat. The American plan system where a waitress is assigned certain tables at which she serves the assigned guests three meals per day goes into effect with the summer sea- son at approximately the end of June. When Sussman asked Rothenberg for her usual summer American plan assignment, Rothenberg was evasive on the first two occasions Sussman inquired but on the third told her, "Rose, you belong to a union, I have enough girls. You go there for jobs. Go there [to the Union] for work." Respondents' payroll records show that with one possible exception (August 6), Respondents assigned no work to Sussman from about June 30 until late in the month of September when, at Rothenberg's request, Sussman did work a few catered parties and 3 days of the Succoth holiday.io On or about July 2, two other Local 2 girls, Beatrice Rada and Jean Briskman, each of whom had worked for the hotel for approximately 10 years apiece, asked Rothenberg to assign them summer work as had been done previously. Rothenberg answered Rada that he did not need Rada "now or hereafter." Rada has not since that time been called to work by Respondents." Rothenberg also refused Briskman's request for summer work despite her long history of service at the hotel. She has not been recalled for work since that time either.12 It is to be recalled that both Rada and Briskman had refused to sign Respondents' so-called "yellow-dog's statement," 10 This episode will be discussed at greater length hereinafter. 11 Rada had rented a summer bungalow about 11/2 hours' drive from Rockaway for her own and her sister's children When Rothenberg refused Rada work that summer, Rada changed her plans and stayed at the bungalow with the children while her sister who was to have stayed at the cottage, returned to study in New York City. The evidence shows that Rada did not remove herself from the employment market at least until after the Respondents had refused her summer work 12 Following Rothenberg's refusal of summer work to Briskman, Briskman and her teacher-husband unexpectedly began a tour of the Western part of the United States Her removal from the employment market was caused by Rothenberg's refusal of summer work. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been strikers, and that, in fact, Rada had been previously discharged because of that same refusal to sign. Miriam Ring, who had signed this so-called "yellow-dog statement" but who had thereafter gone on strike and been reinstated in accordance with a memorandum of agreement, was assigned by Rothenberg an American plan job for the summer on or about June 30. She worked at that job until July 7 when Headwaiter Berger in- formed her that she was being laid off because the hotel was not as busy as ex- pected and because she had the least seniority. When Ring asked her guests for her gratuities as Berger had instructed her, at least one party of guests went to Candib and Rothenberg to complain of the dismissal of Ring. After some considerable talk Rothenberg and Candib as well as Berger pacified the guests over Ring's dismissal by saying that she would be recalled about July 15. However, Ring was, in fact, replaced "as soon as possible" and within a day or two by another waitress and has never since been recalled.13 Striker Stella Dubyk, who had worked as a waitress in the hotel for 13 years and who had refused to sign the so-called "yellow dog contract," returned to work after the strike and worked until July 3. She had complained to Rothenberg regard- ing the unfair work assignment and also to Candib whose answer was for her to "go cry to your union mother." On July 3 Dubyk was assigned the side job of setting up in the ballroom by the headwaiter. This setting up of glassware and silver is heavy work. While still setting up in the ballroom, Rothenberg came in and ordered her to set up in the blue room instead. When this set up work was partially completed, Berger returned and ordered her to set up instead in the marine room. These many and sudden changes of orders upset Dubyk to the extent that she began crying. She came to the conclusion that the Respondent did not want her so she left the hotel and has never been recalled to work by Respondent.14 Dubyk expressed her feelings as follows: "No, I wasn't call up and I didn't come back. How could I come back if they don't want me to come back? There was a real Germany over there. It was just like the Gestapo." Thus by July 9 the services of Veronica Antonello, Beatrice Rada, Jean Briskman, Stella Dubyk, and Miriam Ring, all strikers who had been recalled to work after June 9, had been dispensed with by Respondents. 2. The organizational drive of Local 819 Waitress Veronica (Ronnie) Andrews, the waitress who on June 9 or 10 had informed Local 2 Business Agent Hoffman that the girls would never join Local 2, became a very busy young lady in the union organizational field right after the strike of Local 2 had been settled on June 9. She contracted a Local 6 of the Waiters and Waitresses Union and distributed Local 6 authorization cards around among Re- spondents' waitresses without opposition of Respondents. Candib admitted that he knew that Local 6 had been brought "into the picture" at the hotel. For reasons not disclosed in this record Andrews' attempt to introduce Local 6 was dropped. On August 3, Ronnie Andrews filed an unfair labor practice charge against the Respondents here and Local 2 based upon the contention that the memorandum of agreement executed by and between Respondents and Local 2 was executed at a time when Local 2 did not represent a majority of Respondents' employees After investigation by the Regional Office of the Board, this charge was dismissed.15 13 At the hearing Candib contended that Ring had been discharged for incompetence as an American plan waitress The acknowledged activity of Ring's customers disprove the claim of incompetence. The fact of Ring's immediate replacement disproves Berger's contention that Ring was being dismissed because of a lack of business. 14 During the hearing Candib accused Dubyk of having been drunk on July 3 However, like much of Candib's other testimony, Candib had not seen her in that condition and was, apparently, relying solely upon a report by someone unknown who did not testify. The Trial Examiner is unable to give credit to this unverified hearsay report, especially because in her 13 years of service at the hotel Dubyk had never before even been accused of being intoxicated 15 At the hearing Respondents adduced testimony that these charges had been dis- missed by "Attorney Ambrosio," the attorney representing the General Counsel at the hearing It is true that Ambrosio had apparently investigated the Andrews' charges. But Section 102 12 of the Board's Rules and Regulations proves that the only person authorized to issue such dismissals is the Regional Director, not a trial attorney for the General Counsel. PARK INN HOTEL, INC., ETC. 681 Sometime thereafter Andrews got in touch with organizers of Local 819, Inter- national Brotherhood of Teamsters, and apparently induced that organizers to organ- ize Respondents' employees. In view of the Candib testimony regarding his knowl- edge of Local 6, it is a fair inference that Respondents were not unaware of the facts regarding Local 819. On August 15,16 two organizers from Local 819 walked into Respondents' hotel and requested the right to talk to the Respondents' employees during working hours. According to Rothenberg, when the two men mentioned the word "picket line," Candib "got white in the face" and promptly ordeied Rothenberg to "show them around, let them talk to everybody and let's get rid of them." As a result of these orders, for the next 3 days the organizers for Local 819 accom- panied by Rothenberg went throughout the hotel, had the departmental employees called together in meetings by Rothenberg, and thereafter signed them to Local 819 authorization cards with Rothenberg's approval and assistance. According to the dates on the executed authorization cards, this endeavor required 3 days of effort. On one occasion, at least, Rothenberg had one of the American employees fill in cards for foreign dishwashing employes. On another occasion when one of the employees objected to signing for the Union, Rothenberg told him to go ahead and sign because it would make no difference as the particular employee would not be working at the hotel when the card took effect. On a third occasion Rothenberg told an employee that it was "all right" to sign a Local 819 authorization card. On the last day of this campaign, August 17, Rothenberg himself executed a Local 819 authorization card on which he described himself as "headwaiter." 17 Also on August 17, Local 819 filed a petition for certification as the bargaining agent for all of Respondents' employees. Three or four days of hearing were held on this petition on various dates in November and December 1961 . In August Local 2 filed charges similar in large part to those at issue here.18 About 10 days before Labor Day, Rothenberg asked Kohut who was working for Respondents as an American plan waitress if she "had been oriented . . . and was going to come over to us . . . and join us, Local 819" and added , "You might as well make up your mind now to join us because that's the only union that's going to be in this house." A few days thereafter Candib inquired of Rothenberg in Kohut's presence if he had spoken to Kohut and "is she going to join us?" Rothen- berg stated that she had not agreed to yet but that he "still had hopes." At Rothenberg's request Kohut worked the first 3 days of the Succoth holidays. About October 12, she called Rothenberg as usual for further catering parties. Rothenberg said, "Well , Mildred , you don't want to join up with us, you might as well stick with Local 2 and get work from them." Since Ocotber 12, Kohut has received no work from Respondents. Respondents apparently had trouble securing enough waitresses over the Labor Day, Rosh Hashonoh, and Succoth holidays in September. 19 Respondents' payroll records show that on August 14, Respondents had promoted Ronnie Andrews ( and Rose Mandelberg ) to be a "captain" or "hostess" in charge of either American plan or catering waitresses during a 3 -week period of time when Respondents had no headwaiter . As captain or hostess Andrews was paid a salary of $75 per week whereas previously as American plan waitress she was being paid $33 per week. However Andrews maintained that she suffered a monetary loss with this promotion because of the difference in tips 17 At the hearing Respondents contended that at this time Manager Rothenberg had in fact been "demoted" to headwaiter with a correspondingly large reduction in salary because the Respondents had not been able to locate another headwaiter . As hotel man- ager, Rothenberg had been, of course, in charge of the headwaiter , the waitresses , and the catering in general . The facts ultimately showed that , while Respondents had had trouble in finding a new headwaiter , Respondents had in fact appointed Andrews and Rose Mandelberg as dining room hostesses or captains who, with some help from Rothenberg, performed the duties of headwaiter . Throughout this whole period the facts show that Rothenberg continued performing his managerial duties in addition to supervising the hostesses or captains . Candib admitted that Rothenberg had not actually suffered any monetary loss by reason of this alleged "demotion ." The facts require a finding, here made, that at all times material herein Rothenberg remained Respondents ' Manager. is Subsequently these charges were withdrawn for reasons not set forth herein. The decision on Local 819 's petition for certification is now apparently awaiting the decision in the present matter which began with the very similar charges Local 2 filed November 2, 1961. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rothenberg requested Sussman, to whom he had previously refused summer work at the hotel, to come back over these holidays which she agreed to do. Thereafter Rothenberg asked her to work the first 3 days of this Succoth holiday which Sussman also agreed to do.19 As Sussman was leaving the hotel on the second day of the Succoth holiday, Roth- enberg informed her in the presence of Candib that the real reason for having her working at that time was "so that we can convert you to joining our union, 819 " At that point Sussman pointed to the palm of her left hand and said, "Mr. Martin [Rothenberg] can hair grow here? This is the possibility that I will join your Union, 819." To that Rothenberg rejoined, "Rose, you know what that means? . .. No work." Sussman completed her agreed 3 days' work for the Succoth holiday and left the hotel. The following week she telephoned as usual for catering work and was told by Rothenberg "I have enough girls, Rose. I don't need you." At that point Candib picked up the telephone and said, "You belong to a union, go there for work here- after." Since that time Sussman has had no work at the hotel. In their efforts to secure girls for these Jewish holidays, Respondents also tele- phoned Rita Stetzner to locate some waitresses for Respondents. Stetzner secured Margaret Murphy, Mary Romas, and Gertrude Barto. In order to secure the serv- ices of these girls, Rothenberg promised to give them catering jobs if they would work the Succoth holidays. Respondent knew that these girls had all picketed the hotel during the strike and were members of, or at least pro, Local 2. In a conversation with these girls during this period while they were working for Respondent, Candib told them that he had "no use for unions, especially Local 2," and that he would close up the hotel before he would allow Local 2 to represent his employees. Also during the month of September Rothenberg attempted to get Margaret Murphy to sign a Local 819 authorization card suggesting that he would like to have her on his basic crew of waitresses for catered affairs. About the same time Candib told Stetzner and Barto that he would like to have them together with Murphy and Romas on his basic crew of waitresses but could not as they belonged to Local 2. Early in October, Candib was heard to tell a group of non-Local 2 waitresses who were complaining about the fact that some Local 2 girls were getting work from Re- spondents that they should not worry about it because thereafter the anti-Local 2 girls would get the work rather than the waitresses who belonged to Local 2. It happened just the way Candib said that it would. The following week Stetzner, Barto, Romas, and Murphy went to the hotel to find out their assignments for the week, and Headwaiter Glass told them, "Well, there is no work for any Local 2 girls at this hotel. If I had control over it, I would hire you, but I have no control over it." 20 With one exception since then the Local 2 girls who have called Respondents either in person or over the telephone for work assignments have been universally unsuc- cessful in securing employment from Respondents. On November 2 Local 2 filed the charges which are the basis for the present matter. On November 11 Respondents made its sole exception to the aforementioned Glass statement and hired Mary Romas for a catered affair. She was the only Local 2 girl working. Her presence at the party was explained by Candib himself who told Romas on that occasion, "Well, I guess Local 2 can't prove that I am not hiring Local 2 girls because I hired you." Respondents' payroll records prove that, although Local 2 girls have not been em- ployed since November 11, all the non-Local 2 girls are working steadily. ' Local 2 officials have attempted unsuccessfully to get Respondents to negotiate the labor agreement referred to in the June 9 memorandum of agreement. During June Candib told Local 2 officials that he was too busy with his many catered affairs to have time enough to sit down and negotiate such a contract with them. Sometime in October Hoffman, then president of Local 2, finally was able to get in touch with Candib over the telephone by using the subterfuge of giving the hotel telephone op- erator a name different than his own. He asked Candib to sit down and negotiate the contract called for in the memorandum of agreement. Candib answered, "Look, my season is over, I'll never sit down and negotiate . . . from now on you can go and whistle." 11 Succoth actually covers about a 10-day period of which the first 2 or 3 days and the last 2 days are the important days of the holiday 21 Glass did not testify at the hearing although there is no showing that he was unavailable PARK INN HOTEL, INC., ETC. 683 B. Conclusions In General The facts in the instant matter speak so plainly and forceably as to almost elim- inate the necessity for making any conclusionary findings for all intents and purposes. Respondents have failed to submit a brief. Thus, the Trial Examiner is left to his own devices to conjure up what defense or defenses Respondents may consider that they have to the allegations of the present complaint. Respondents' defense seems to be one of confession and avoidance rather than an outright general denial or an affirmative defense of some sort. Actually very little of the evidence presented by the witnesses for the General Counsel was specifically denied. Candib and Rothenberg made general denials that they had interfered with, restrained , or coerced Respondents ' employees, illegally assisted Local 819 or had discriminated against any Local 2 employee . Although these denials are really nothing more than denials of conclusions , the Trial Examiner has given them weight as generalized denials of factual materials . This, therefore, requires some comments as to the witnesses and the credibility accorded them in general. The witnesses for the General Counsel were in general the waitresses to whom statements were made or about whom events occurred . They testified to the events in which they took part and to the statements made to them . Their testimony was straightforward and a simple account of the events and statements as had occurred in their presence . Most of this testimony was mutually corroborative . In many cases it was confirmed by Respondents ' own payroll records.21 The evidence pre- sented by these witnesses was not in any case injured or destroyed by rigorous cross- examination . Due to charges made by Respondents practically at the outset of the hearing of wrongdoing on the part of Board personnel , or a conspiracy between the Board and Local 2, subsequently changed to the fact that the Board had been "duped" by union machinations , Respondents were granted and exercised the widest possible latitude in cross-examination based upon this Trial Examiner's personal rule that whenever such charges are made against the Board o: its personnel the bars are down and Respondents making such charges are invited to prove the same if they can. Even this ruling availed Respondents nothing. The Trial Examiner was im- pressed with the candor and honesty of the witnesses presented by the General Counsel. Unfortunately the Trial Examiner cannot make a similar finding in regard to the Respondents' chief witnesses, Candib and Rothenberg . On a number of occasions each of these witnesses testified regarding events and statements of which he had no personal knowledge or connection . Candib, for instance , on occasion disclaimed any knowledge of Respondents' hiring practices but, when convenient to his contentions, suddenly would assert such knowledge although subsequent proof showed that he had nothing to do with their hire. Although Sussman was hired by Rothenberg for only the first 3 days of the Succoth holiday (testimony which Rothenberg did not deny), Candib suddenly "knew" that she had been hired for the full 10-day holiday period despite the fact that Rothenberg was the man who did the actual hiring Likewise Rothenberg testified to alleged telephone calls from union organizers to Candib in an effort to explain the interrogations of April 22 or 23, and 29 and 30, whereas Candib, the alleged recipient of these calls , objected strenuously when General Coun- sel attempted, in Candib 's word, to "pinpoint" even the approximate date of any such calls. On occasions during the hearing the apparent exigencies of the moment caused both these witnesses to contradict other testimony by themselves . Occasionally Candib appeared to become almost intentionally evasive and vague as to times and events. Accordingly, the Trial Examiner was unimpressed with either Candib or Rothenberg. On several occasions Respondents would make some contention , such as the claim that Respondents' business fell off some $50 ,000 worth because of the strike, a fact which does not appear to be borne out by Respondents ' payroll records, and then would say that it would introduce corroborating financial records . Never throughout these proceedings was such corroboration introduced . In other words Respondents' 21 In a couple of instances Respondents made much of certain payments made to certain witnesses, particularly on or about August 6 At best this was impeachment on a sub- sidiary, almost immaterial , issue But the facts further show that not infrequently em- ployees were paid by Respondents for work long after the work itself had been completed, a fact which destroyed whatever materiality Respondents may have claimed for this evidence. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony gave the appearance of being more froth than substance, and much of that of the opportunistic type. In the absence of a brief from Respondents, the Trial Examiner must necessarily rely upon his own imagination to conjure up the defenses upon which he thinks the Respondents were relying. The first defense stated early in the hearing was to the effect that the Board was either the "dupe" of the machinations of Local 2 here or else was in conspiracy with Local 2 against Respondents. Although Respondents tried and took full advantage of the Trial Examiner's ruling that the bars were down so far as proof of these charges was concerned, Respondents were unable to prove that Board personnel had been duped by or were in conspiracy with Local 2 or had in any way misbehaved. The closest Respondents came was a leading question which brought forth the answer from a witness who obviously had absolutely no knowledge of the subject that "At- torney Ambrosio" had dismissed the charge filed by Ronnie Andrews. This matter has been referred to supra. The second defense Respondents appeared to raise was that the Respondents' business had fallen off by $50,000 worth because of the strike with the implication being that the Local 2 girls had not been given work because there was no such work available. Respondents not only failed to substantiate this claim but their own payroll records in evidence prove the existence of abundant work. The other defense appeared to be that Respondents wanted the question of union representation determined by an election. The short and complete answer to this is that, as will be found infra, Respondents' own illegal assistance to Local 819 as well as its course of interference, restraint, and coercion against Local 2 effectively pre- cluded the possibility of the holding of any such election at which the employees could have expressed their own unharrassed desires. Thus, Respondents' own chosen course of action prevented the very election it proclaimed at the hearing that it wanted. Therefore, none of the Respondents' defenses, if defenses they be, is sustained by the evidence presented here. Thus, we come to a consideration of the unfair labor practices charged in the complaint: 1. Local 819 The facts regarding the organizational efforts of Local 819, evidence which was in large measure admitted, lead but to the conclusion that Respondents gave Local 819 illegal assistance and support in its organizational efforts in violation of Section 8(a)(2) of the Act. With Candib's permission two organizers for Local 819 were not only permitted to interview all of the hotel employees during working hours on the hotel premises but were even assisted in their endeavors by Hotel Manager Rothenberg who not only assembled the employees for the organizers but instructed them that it was "all right" for them to join Local 819 and, in fact, instructd one employee to assist others in filling out such authorization cards. Indeed Manager Rothenberg himself executed such an authorization card as "headwaiter." 22 Subsequently Candib himself sought to induce employees to sign authorization cards for Local 819 with the inducement that they would secure work from Respondents if they signed and with threats, subsequently carried out, of loss of employment if they did not. A stronger case of illegal assistance and support for a union in violation of Section 8(a) (2) is hard to imagine. Accordingly, the Trial Examiner must find that by the above actions, Respondents gave illegal assistance and support to Local 819 in viola- tion of Section 8 (a) (2) of the Act. 2. Interference, restraint, and coercion 23 In addition to the Respondents' interference, restraint, and coercion of their employees by reason of illegal assistance and support given to Local 819, this record 22 Rothenberg's headwaitership has been discussed above 23 Due to the 6-month limitation contained in Section 10(b) the incidents of April 22 or 23 and 29 and 30 are not here considered as unfair labor practices They are found here solely as "background" to explain subsequent events, animus, and Respondents' motivation. International Brotherhood of Electrical Workers, Local Union 340, AFL-CIO (Walsh Con- strnction Company), 131 NLRB 260, footnote 2 PARK' INN HOTEL, INC., ETC. 685 is so full of statements by Respondents designed to coerce the waitresses into abandoning Local 2 and into supporting Local 819 that it would serve no useful pur- pose to reiterate them here in detail. They are epitomized by the Candib-Rothenberg statements to waitress Sussman that they had hired for the Succoth holiday solely in order to "convert" her "to our union, 819" which "was the only union Respondents would permit to represent" the hotel employees and its sequel when, upon Sussman's refusal to be coerced from her membership in Local 2 and into signing up with Lo- cal 819, Rothenberg stated, "You know what that means .. . no work." Another example, of course, was Respondents' attempted inducement to waitresses Stetzner, Murphy, Barto, and Romas of adding them to Respondents basic crew of witnesses conditioned, of course, upon their joining Local 819 and abandoning Local 2. Respondents' intention to force the waitresses to abandon Local 2 is made so clear from the innumerable statements of Candib and Rothenberg to Local 2 members as to permit no other finding than that Respondents thereby interfered with, re- strained, and coerced its employees and discriminated against its employees in viola- tion of Section 8(a) (l) and (3) of the Act. The General Counsel produced a great deal of testimony to the effect that the Respondents discriminated against the Local 2 waitresses upon their return after the strike by assigning them more onerous and less agreeable work than was alloted to non-Local 2 waitresses. Respondents' evidence actually did not controvert this type of discrimination. It is undenied that after the strike Rada and Briskman, who had both gone on strike, were no longer rotated in their former bartending assignments, a choice assignment. In fact when Local 2 waitress Dubyk complained about the discriminatory assignments, Candib's only answer was that "these girls [non-Local 2 waitresses] don't make me no trouble, they don't run up with the [picket] sign on the street." The Trial Examiner is convinced from the evidence and from Respondents admis- sions, and therefore, finds that Respondents interfered, restrained, and coerced its employees by assigning Local 2 waitresses more onerous and less agreeable work tasks as alleged in the complaint in violation of Section 8(a)(1) and (3) of the Act. 3. Discrimination In addition to the discriminatory assignment of work stations and duties as be- tween Local 2 and non-Local 2 employees, the evidence is conclusive that as between these two groups of employees Respondents assigned far more work to the non- Local 2 girls than to the Local 2 waitresses after, and because of, the fact that the Local 2 waitresses had engaged in the May 27 to June 8 strike against the Respond- ents and had refused to abandon Local 2 or join Local 819. A study of Respondents payroll records is conclusive on this point.24 Candib and Rothenberg made it clear to the Local 2 waitresses that they were getting less-or no-work assigned to them because of their union affiliation and because of that alone. Rada and Briskman were told by Rothenberg that there would be no work for them "now or hereafter," i.e., they were discharged after some 10 years a piece of satisfactory service at the hotel. When Respondents took them back after the strike, it retaliated against them for having struck by discrimina- torily refusing to rotate them in their former bartending duties and assigning them stations distant from the kitchen. Respondents' refusal to assign them work on July 4, and thereafter, as it customarily had done, was part of this same discriminatory treatment stemming from their known affiliations and activities on behalf of Local 2. The discrimination against Local 2 waitresses is made crystal clear when Sussman and Kohut, both Local 2 advocates, were told as in the Sussman case that it meant "no work" for her when she refused to abandon Local 2 in favor of Local 819 as required by Candib and Rothenberg. Candib and Rothenberg employed the exact same tactics of inducement in requesting Stetzner, Barto, Romas, and Murphy to join their basic crew conditioned up, on their joining "our union," Local 819. That this same discrimination was practiced by Respondents against all the named dis- criminatees alleged in the complaint was made clear beyond cavil by Headwaiter Glass' undenied statement that "Well, there is no work for any Local 2 girls at this hotel " Candib confirmed Glass' statement by telling Local 2 President Hoffman that Local 2 could "go whistle" now that Respondents' busy season was over. 24 See Appendixes B and C. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, the Trial Examiner must find that Respondents discriminated in regard to the hire and tenure of employment of Veronica Antonello, Gertrude Barto, Jean Briskman, Stella Dubyk, Mildred Kohut, Rita Lehman, Margaret Murphy, Beatrice Rada, Miriam Ring, Rita Stetzner, Rose Sussman, and Mary Romas by discharging or refusing to assign work to them because of their membership in and activities on behalf of Local 2 in violation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Respondents described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondents have engaged in certain unfair labor practices, it will be recommended that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondents discriminated in regard to the hire and tenure of employment of the employees listed above by failing and refusing to assign work to each of them and by reason of the other discriminatory practices found above, the Trial Examiner will recommend that Respondents offer to each of them immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make each of them whole for any loss of pay she may have suffered by reason of said discrimination against her by payment to her of a sum of money equal to that which she would have earned as wages from the date of the discrimination against her to the date of her full and complete reinstatement, less her net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent. It having been found that Respondents contributed illegal support and assistance to Local 819, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the Trial Examiner will recommend that such assistance and support to said Local 819 cease and that Respondents withhold recognition from Local 819 unless and until said Local 819 be certified by the Board. Because of the variety of the unfair labor practices engaged in by Respondents, the Trial Examiner senses an attitude of opposition to the purposes of the Act in general, and hence the Trial Examiner deems it necessary to order that Respondents cease and desist from in any manner infringing upon the rights guaranteed its em- ployees in Section 7 of the Act. CONCLUSIONS OF LAW 1. By discriminating in regard to the hire and tenure of employment and in regard to the terms and conditions of employment of Veronica Antonello, Gertrude Barto, Jean Briskman, Stella Dubyk, Mildred Kohut, Rita Lehman, Margaret Murphy, Beatrice Rada, Miriam Ring, Rita Stetzner, Rose Sussman, and Mary Romas, thereby discouraging union activities among its employees, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. 2. By illegally supporting and assisting Local 819, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 3. By interfering with. restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] PARK INN HOTEL, INC., ETC. APPENDIX B Earnings 1961 by Quarters 637 Years employed 1st 2d 3d 4th STRIKERS B Rada----------------------- 10----------------------------- $418 $349 $ 0 $ 0 R Stetzne-------------------- 1---------------------------- 267 88 311 250 0 Barto ---------------------- -------------------------------- 38 19 79 109 M Kohut--------------------- 13----------------------------- (.)7 688 652 16 S. Dubyk--------------------- 13----------------------------- 704 517 ---------- ---------- J Briskman------------------- 9 ------------------------ --- 650 696 ---------- ----- V Antonello------------------ 1Y2 --------------------------- 226 156 ---------- ---------- R Sussman------------------- 10----------------------------- 581 683 257 16 R Lehman-------------------- 1------------------------------ 309 260 127 26 M. Roman-------------------- -------------------------------- ---------- ---------- 163 110 M Ring---------------------- -March 12,1961---------------- 76 523 33 - M. Murphy------------------- -------------------------------- 12 ---------- 73 11 NONSTRIKERS Doris Huerta------------------ Several ------------------------ 627 1,375 712 525 S Fahey--------------------- -----do---------------------- 418 647 638 617 B Fahey---------------------- -----do------------------------- 760 1,407 540 2 M Brady--------------------- -----do------------------------ 813 1,060 528 685 R. Andrews------------------- -----do------------------------- 598 1,280 837 547 J MacDonald----------------- ----- do------------------------ 304 895 823 318 R Mandelberg---------------- ----- do------------------------ 592 1,206 891 1,133 A Kohler--------------------- -----do----------------------- 491 955 656 677 Q Duda---------------------- May 21, 1961----------------- ---------- 582 231 476 F Mllsap-------------------- May 28, 1961------------------ ---------- 765 115 ---------- Peggy Barry------------------ March 26,1961 ---------------- 19 398 553 219 APPENDIX C Comparison of June 1961 Earnings of Recalled Strikers and of Nonstrikers REGULAR WAITRESSES Name 1st wk I 2d wk 3d wk 4th wk 5th wk. Total Stella Dubyk•---------------------------- ------ ---- ------ ---- $72 00 $72 00 $43 00 $187 00 Mildred Kohut`-------------------------- ------ ---- 3$76 00 3 145 00 88 00 ---------- 00 Rita Lehman°---------------------------- ------ --- 25 00 ----_ 31 00 ----- -- Beatrrce Rada---------------------------- ------ ---- 50 00 72 00 78 00 ---------- 200 00 Miriam Ring"-------------------------- ----- ---- 50 00 72 00 52 00 - 00 Rose Sussman---------------------------- ------ ---- 76 00 6 121 00 78 00 7 00 82 00 Joan Brlskman`-------------------------- ------ ---- 76 00 70 00 76 00 50 00 272 00 Ronnie Andrews-------------------------- $117 00 111 00 158 00 125 00 ---------- .194 00 Margie Brady---------------------------- ------- --- 227 00 ---------- 10'3 00 ---------- 330 00 Bridget Fahey---------------------------- 152 00 104 00 209 00 174 00 ---------- 487 00 Sheila Fahey----------------------------- 95 00 69 75 72 00 47 00 ---------- 188 75 Barbara Foley---------------------------- ------- --- 23 00 70 00 76 00 ---------- 169 00 Doris Huerta** --------------------------- 117 00 76 00 197 00 130 00 77 00 430 00 Ann Kohler------------------------------ 117 00 76 00 176 50 72 25 75 00 399 75 Rose Mandelberg------------------------- 81 00 76 00 162 00 110 00 ---------- 348 00 Joyce MacDonald------------------------- 133 00 76 00 135 00 104 50 ---------- 315 50 Footnotes at end of table. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EXTRA WAITRESSES Name 1st wk.' 2d wk. 3d wk. 4th wk. 5th wk. Total 2 Joan Price**---------------------------- $24.00 - ------ Erna Sheppard------------------------- 43.00 $55.50 $50.00 -------- 105.50 Margot SwiatowskY---------------------- ---------- 31.00 --------- ---------- 31.00 Ann Alexandrio ---------- ---------- 22.00 ---------- ---------- 22.00 Peggy Barry------------------------------ ---------- 50.00 72.00 ---------- ---------- 122.00 Anna Bejian------------------------------ ---------- ---------- ---------- $65.00 ---------- 65.00 Diva Bruck**----------------------------- 28.00 53.00 ---------- 22.00 ---------- . 75.00 Irene Duda**----------------------------- 102.00 50.00 141.00 102.50 ---------- 293.50 Mary Egan*•----------------------------- ---------- 80.00 26.00 ---------- 106.00 Rose Gallagher**------------------------- 75.00 68.50 112.00 94.00 ---------- 274.50 Olga Genzone*"--------------------------- 43.00 31.00 49.00 52.00 $49.00 181.00 Theresa Gibbons**----------------------- 85.00 68.50 50.00 76.00 25.00 219.50 Kay Gierish*•---------------------------- 65.00 56.00 - ---- 56.00 Betty McAllister•*----------------------- 43.00 71. 50 72.00 102.00 ----- 245.50 Frances Milsap**------------------------- 152.00 50.00 140.00 137.00 ----- 327.00 Anna Spagnaletto*'----------------------- 43.00 69.00 72.00 52.00 ----- 193.00 Eileen Smith----------------------------- ---------- ---------- 24.00 - 24.00 Billie Wolf**------------------------------ 65.00 ---------- -- -------- --------- ------- I3elen Gasper*"------ 12.00 ---------- ---------- ---------- ------- Kathleen Egan --------------------------- ---------- ---------- ---------- 26.00 26.00 Total------------------------------- 1, 635.00 1, 845.75 2, 615.50 2,174.25 961.50 • Denotes alleged discriminatee. *• Denotes worked during strike. 3 Strike period. 2 Last 4 weeks only. 3 May include prestrike earnings (see Tr. 499-500). Ibid. 5 May include prestrike earnings (see Tr. 478-479). E Ibid. International Association of Heat and Frost Insulators and As- bestos Workers, AFL-CIO; and International Association of Heat and Frost Insulators and Asbestos Workers, Local 2, AFL-CIO and Speed-Line Manufacturing Company, Inc. International Association of Heat and Frost Insulators and As- bestos Workers, AFL-CIO; and International Association of Heat and Frost Insulators and Asbestos Workers, Local. 2, AFL-CIO and Fibrous Glass Products, Inc. Cases Nos. 6-CC- 261-1, 6-CC-261-2, and 6-CC-270. October 31, 1962 DECISION AND ORDER On May 25, 1962, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. Thereafter, the Respondents filed exceptions to the In- termediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 1139 NLRB No. 53.